Frank Green v Michelle Bannister
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,Sir Martin Nourse,SIR MARTIN NOURSE,Lord Justice Sedley,Lord Justice Waller,The Vice-Chancellor |
| Judgment Date | 16 December 2003 |
| Neutral Citation | [2003] EWCA Civ 864,[2003] EWCA Civ 1819 |
| Date | 16 December 2003 |
| Docket Number | Case No: B3/2003/0862,B3/2003/0862 |
| Court | Court of Appeal (Civil Division) |
[2003] EWCA Civ 1819
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BARNSLEY COUNTY COURT
(Mr Recorder Goose QC)
The Vice-Chancellor
Lord Justice Waller and
Lord Justice Sedley
Case No: B3/2003/0862
Michael Redfern QC and Richard Norton (instructed by Peace Revitt) for the Respondent
Douglas Herbert (instructed by Beachcroft Wansbroughs) for the Appellant
On the night of Sunday 28 February 1999 the appellant Michelle Bannister, who lived with her parents in a residential cul-de-sac, West Street, Wombwell, was telephoned by her parents and asked to come and pick them up from the High Street in her father's Vauxhall Cavalier. She went out to the car, which was parked at the kerb in herring-bone fashion alongside the neighbours' cars, and reversed it towards Bartholomew Street, looking over her right shoulder to ensure that she stayed clear of the parked cars to her offside.
About 35 yards along the road, as she manoeuvred past a shrubbery bed near the mouth of the road, her rear nearside wheel ran over Frank Green, the son of the next-door neighbours, who not long before had returned extremely drunk, had collapsed in the roadway and had remained there in a stupor.
Miss Bannister got out and found Mr Green motionless between the car's front and rear wheels. She got her grandfather, who also lived in the cul-de-sac, to call the emergency services. Then she returned to the car and, in a moment of panic, drove it forward, dragging Mr Green four or five feet. Although this was initially pleaded as a separate cause of action, it was treated at trial as part of the main cause of action, possibly because most if not all of the serious damage had been done by the initial impact. The damage was so severe that it has left Mr Green confined to a wheelchair with tetraparesis.
At the trial of Mr Green's negligence action against Miss Bannister, Mr Recorder Goose QC on 2 April 2003 found that she had not been negligent in electing to reverse down and out of the cul-de-sac, but that she had failed to keep an adequate lookout by looking over her left shoulder or in her nearside wing or rearview mirror. Had she done so, he found that she would probably have seen and so been able to avoid Mr Green. He found Mr Green, however, partly to blame for his own misfortune, and apportioned liability 60 per cent to him and 40 per cent to Miss Bannister.
With the permission of this court (Peter Gibson LJ and Sir Martin Nourse) given on 13 June 2003 following refusal on the papers by Kay LJ, Miss Bannister now appeals against the finding of liability and, in the alternative, the apportionment of contributory negligence. The latter has not been argued before us, but ought nevertheless to be briefly mentioned.
Contributory negligence
If Miss Bannister was at fault at all, the apportionment of 60 per cent of the total blame to Mr Green on the facts I have outlined cannot be impugned. The recorder accepted that the driver of a car has a far greater power than a pedestrian to cause injury, but pointed out that it was Mr Green's voluntary intoxication which had created the danger and that Miss Bannister had been reversing slowly down a quiet road, albeit without keeping as full a lookout as she should have done.
If this apportionment were vulnerable at all on appeal, the reasoning of this court in Eagle v Chambers [2003] EWCA Civ 1107 suggests that it might be because it was over-generous to the appellant. But in the absence of a cross-appeal on this aspect of the case, it is necessary to say no more than that the recorder's decision that Mr Green was the more blameworthy of the two in a ratio of 6 to 4 was by no means unfair to Miss Bannister once she had been held negligent. The real questions are whether she ought to have been held to be negligent at all and, if so, whether her negligence was causative of the accident.
Was the defendant negligent?
The respondent does not seek to upset the recorder's finding that Miss Bannister, who had passed her driving test seven months earlier, was not negligent in failing to execute a three—or four-point turn in order to drive forwards out of West Street. The next question is therefore whether she exercised sufficient care in reversing down a constricted and ill-lit street late at night.
This was a manoeuvre the appellant had carried out regularly since learning to drive. The recorder found that she had checked her mirrors before starting the engine and reversing out but that she did not from then on use either the wing or rear-view mirrors. Instead —as she herself had said in her evidence in chief —she kept a steady lookout over her right shoulder in order to navigate by the line of parked cars on her offside. As she came to the mouth of the road she adjusted her course to clear the raised shrubbery bed which narrowed the carriageway on her nearside, and it was there that her rear nearside wheel ran over the inert Mr Green.
In accepting that it was open to Miss Bannister without negligence to reverse the car down the road, the recorder added the corollary that "it did require a high degree of care in watching what was behind when reversing as much as 35 feet or more". The logic of this is obvious. Slow-moving pedestrians are only one example of what might have entered her path. It followed, in the recorder's judgment, that Miss Bannister's failure to look over her left shoulder or to use any of her mirrors during the manoeuvre was negligent.
What is now said on Miss Bannister's behalf is that the standard of care which the recorder applied to her driving was not that of an ordinarily prudent motorist but a standard of perfection. Once he had found, as he did, that it was not negligent to reverse out of the cul-de-sac, her counsel Mr Herbert submits that there was no reason for her to anticipate an inert pedestrian or anything remotely similar in her reversing path.
Causation
The recorder went on to hold that that but for her failure to look in her nearside mirror the defendant would have seen Mr Green and have been able to stop —in other words, that the negligence was causative of the accident. It is submitted by Mr Herbert that the evidence did not entitle the recorder to reach this conclusion: it disclosed no good reason to suppose that Miss Bannister would have seen Mr Green if she had looked in her nearside mirror, the more so since she was not asked about it in cross-examination.
Particular reliance is placed on the recorder's omission of any reference to the evidence that the only street lighting in the cul-de-sac section of West Road was a single sodium lamp and that Mr Green was probably lying in a pool of shadow. But this is distinctly two-edged. If anything it emphasises the need for great care if one is reversing down such a street at night without the benefit of headlamps.
It is true, however, that the primary case put to Miss Bannister by Mr Green's counsel was pitched on the ultimately unsuccessful proposition that she should not have been reversing at all. It was suggested to her accordingly that one of the reasons for not reversing down the street was —precisely —that you had to keep looking over your right shoulder and could not check your nearside. It was not right, her counsel now submits, to convict her of negligence on the opposite premise —that she was doing nothing wrong in choosing to reverse down the road.
The claim as pleaded, however, did include an allegation that Miss Bannister had "failed to observe the claimant by the use of her mirrors as she began her reversing manoeuvre". It did not allege a continuing failure to do so; but it did lastly allege that that she had "caused the claimant's injuries when by the exercise of reasonable driving skill and care she could and should have avoided the same". Without objection, Mr Green's case was put in his skeleton argument at trial in this way: "The Defendant could have seen the Claimant as she reversed. Even if she could not see him through the rear window, she ought to have seen him in her nearside rear view mirror." The defendant's skeleton argument simply said: "It will be a matter for determination by Trial Judge as to visibility of Claimant to Defendant and as to the appropriate standards for a competent and careful car driver."
I do not think the defendant was ambushed. Given the pleadings and skeleton arguments, it was open to her counsel, just as it was to the claimant's, to broach the question whether, had she used her nearside wing mirror, she would have seen Mr Green. If in the event the judge was left to decide this without Miss Bannister's testimony, it was testimony which could have carried little if any weight. What would have been more to the point was a simple piece of reconstruction of the sort which road traffic experts are constantly doing —more often than not on unverifiable premises —in road accident cases. Here, for once, all the data were known, but nobody gave evidence to the recorder as to whether an object the size of a man, lying in the mouth of the road and clad in a light-coloured or white top, was visible in the lamplight of West Road to the driver of a slowly reversing Cavalier if the driver either used the nearside wing or rearview mirror or looked back over his or her left shoulder.
The specialist police officer, Mr Logan, who attended the scene of the accident and took video film and measurements, was asked principally about the wisdom and feasibility of executing a...
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